Magu, as explained to me
This is dedicated to Joe Abah. He said I should consult a law student. Turns out that during the week, I had taken the liberty of speaking with three lawyers I know. Brilliant chaps, one a SAN. What they explained to me is below, in as much English as I can simplify it to.
There are two salient legal principles that are usually conflated in this matter.
What most people refer to is the inconsistency principle, the idea that any legal provision that is inconsistent with the Consitution is null and void to the extent of that inconsistency.
That rule, the supremacy clause as contained in s.1(3) of the Constitution is to the effect that if there are any two conflicting provisions, one of which is in the Constitution, the constitutional one prevails.
There’s one catch to the principle, there has to be an explicit constitutional provision that an offending law is in conflict with.
In this case, the Constitution is silent on confirmations. However, the same Constitution does provide that the National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List [s.4(1)(2)] or any matter in the Concurrent Legislative List [s.4(4)(a)] or any matter in which it is empowered to make laws [s.4(4)(b)].
It is based on this constitutional power that the National Assembly enacted the EFCC Establishment Act, 2004 where it gave the Senate the power to confirm all members of the EFCC, including the Chairman, except for ex-officio members.